A sharply divided three-judge panel of the D.C. Circuit ruled last week in Davis v. Billington that a Library of Congress employee did not have a Bivens claim against his supervisor and the Librarian of Congress for firing him for his speech. The court ruled that special factors counselled against extending Bivens, because Congress did "not inadvertently" omit damage remedies for employees in the plaintiff's position--employees of the Library of Congress, not the executive branch--in the comprehensive Civil Service Reform Act.

The case arose after Morris Davis, the Congressional Research Service Assistant Director of the Foreign Affairs, Defense, and Trade Division, penned some high-profile opinion pieces critical of the Obama administration for choosing to prosecute some Guantanamo detainees in federal courts and others in military commissions. Davis was also critical of the Bush administration handling of Guantanamo detainees.

Davis had some unique familiarity with these issues. He served as Chief Prosecutor of the military commissions at Guantanamo Bay until October 2007.

After the pieces came out, Daniel Mulhollen, Davis's supervisor, fired him. Davis sued Mulhollen and Billington, the Librarian of Congress, seeking declaratory and injunctive relief, and for damages against Mulhollan for violation of his First and Fifth Amendment rights under Bivens.

The court ruled that special factors counselled against extending a Bivens remedy, because Congress, through the comprehensive remedial scheme in the CSRA, did "not inadvertently" omit damage remedies for civil service members, like Davis, outside the executive branch.

Judge Rogers filed a lengthy and sharp dissent. She said that Congress omitted civil service members outside the executive branch from the CSRA remedial scheme based on separation-of-powers principles. That is, the legislative history of the CSRA shows that Congress didn't include legislative branch employees in the CSRA comprehensive remedial scheme because it didn't want the executive branch to have the power to adjudicate claims of legislative branch employees. The history shows, moreover, that Congress didn't have that same concern with respect to judicial adjudication. According to Judge Rogers, this all shows that Congress did not omit legislative branch employees becauase it wanted to leave them without a remedy. On the contrary, Congress seems to have left open the possibility of a judicial remedy--a Bivens action.